THIS COURT SHOULD ABANDON ITS RULE THAT,
AS A MATTER OF LAW, INDIVIDUALS WITH INSULIN-
TREATED DIABETES MELLITUS MAY BE EXCLUDED
FROM JOBS FOR WHICH DRIVING IS AN ESSENTIAL
FUNCTION 10

A. The Per Se Rule Is Inconsistent With The ADA, Which
Requires Courts To Make Factual Inquiries In Determining
Whether An Applicant Is A Qualified Individual With A
Disability, Whether An Applicant Poses A Direct Threat,
And Whether An Employer's Qualification Standards Are
Justified By Business Necessity 10

B. New Developments Since The Decision in Chandler Warrant Abandonment Of The Per Se Rule 16

C. This Court Should Vacate The Judgment For The City
And Remand To The District Court To Resolve The
Factual Dispute Regarding Plaintiff's Qualification For
The Position 26

Report to Congress on the Feasibility of a Program to Qualify
Individuals with Insulin Treated Diabetes Mellitus to
Operate Commercial Motor Vehicles in Interstate Commerce
(July 2000) (attached as a separate addendum to brief) passim

- iv -

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50588

JEFF KAPCHE,

Plaintiff-Appellant

v.

CITY OF SAN ANTONIO,

Defendant-Appellee

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

INTEREST OF THE UNITED STATES

This is an action under Title I of the Americans with Disabilities Act (ADA),
42 U.S.C. 12111-12117, involving a plaintiff with insulin-treated diabetes mellitus
who was disqualified for a position as police officer, on the ground that driving is
an essential function of the position and that drivers with insulin-treated diabetes
present a safety risk to themselves and others. The Department of Justice has
significant responsibilities for the enforcement of the ADA as well as the
Rehabilitation Act, 29 U.S.C. 791 et seq., which is to be interpreted consistently
with the ADA. See 42 U.S.C. 12117; 29 U.S.C. 794(a). In addition, federal law
enforcement agencies are subject to Section 501 of the Rehabilitation Act, which
prohibits discrimination in federal civilian employment on the basis of disability.
29 U.S.C. 791. Finally, the United States Department of Transportation is
responsible for implementation of the Motor Carrier Safety Act of 1984, 49 U.S.C.
31131 et seq., and, in that role, has issued regulations regarding licensing of
individuals for the operation of commercial motor vehicles in interstate commerce.
See 49 C.F.R. 391.41(b). Pursuant to Section 4018 of the Transportation Equity
Act for the 21st Century, Pub. L. No. 105-178, 112 Stat. 107, 413 (1998), the
Department of Transportation has recently submitted to Congress a report
concluding that a safe and practicable protocol to allow some drivers with insulin-treated diabetes to operate commercial motor vehicles is feasible. A copy of this
report is included as an addendum to the United States' brief.

STATEMENT OF THE ISSUE PRESENTED

The United States will address the following issue:

Whether this Court should abandon its rule that, as a matter of law,
individuals with insulin-treated diabetes mellitus present a significant safety risk
while driving, and therefore can be excluded from jobs for which driving is an
essential function, without violation of the Americans with Disabilities Act or the
Rehabilitation Act.

STATEMENT OF THE CASE

Plaintiff Jeff Kapche has insulin-treated diabetes mellitus (ITDM). In
February 1994, he applied for a position as a law enforcement officer with the San
Antonio Police Department, but was disqualified for the position after he revealed
in a medical examination that he had ITDM.

1. Following his disqualification by the San Antonio Police Department,
Kapche filed this action against the City of San Antonio (City), alleging violations
of Title I of the ADA. He seeks back pay, front pay, reinstatement if the court
determines that front pay is not warranted, and compensatory and punitive damages
(R. 814-817). (1)

In 1998, the district court granted summary judgment to the City, relying on
two previous Fifth Circuit decisions holding, as a matter of law, that persons with
ITDM may be per se disqualified from positions in which safe driving is an
essential function of the job. See Kapche v. City of San Antonio, 176 F.3d 840, 842
(5th Cir. 1999) (Kapche I) (citing Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir.
1993) (finding no violation of the Rehabilitation Act), cert. denied, 511 U.S. 1011
(1994); Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995) (finding no
violation of the ADA), cert. denied, 516 U.S. 1172 (1996)).

2. On appeal, this Court found "a genuine dispute of material fact regarding
the safety risk posed by insulin-dependent drivers with diabetes mellitus." Kapche
I, 176 F.3d at 847. It therefore vacated the summary judgment and remanded to the
district court to consider the continued viability of the per se rule adopted in
Chandler and Daugherty:

[T]he time has come for a reevaluation of the facts that supported our
prior per se holdings in Chandler and Daugherty. To this end, we
vacate the district court's grant of summary judgment in favor of the
City and remand for a determination whether today there exists new or
improved technology -- not available at the time these cases were
decided -- that could now permit insulin-dependent diabetic drivers in
general, and Kapche in particular, to operate a vehicle safely.

Ibid. In reaching this result, this Court acknowledged the tension between the per
se rule and the EEOC regulations requiring an individualized assessment of an
applicant's ability safely to perform the job. Id. at 844-847. But it concluded (in
the absence of supervening en banc authority) that exceptions to the requirement of
an individualized assessment were permissible. Id. at 846. The question, this
Court stated, was whether the Chandler-Daugherty rule "remains scientifically
valid." Ibid. at 846. This Court noted that both decisions had relied upon case law
and Department of Transportation regulations. But both had "contemplated a
departure from" the per se rule, "in the event that medical technology should
advance to the point that insulin-dependent diabetics no longer pose a danger to
themselves or others." Id. at 846. Since that time, this Court found, the
Department of Transportation had amended its highway safety regulations to allow
persons with ITDM to operate noncommercial vehicles, and there had been
medical advances regarding the treatment of diabetes, as well as studies tending to
demonstrate that drivers with ITDM would not pose a safety risk. Ibid. For that
reason, this Court concluded, it was time to reconsider the factual basis of the per
se rule. Ibid.

With respect to Kapche's claim, this Court found that the City had not
performed an individualized assessment of his ability to perform the job. 176 F.3d
at 847. Thus, if, on remand, the district court found "a sufficient factual basis for
overcoming the per se rule of Chandler/Daugherty," it was to "open discovery (or
conduct a full blown merits trial) for a determination of Kapche's qualification to
perform all of the essential functions of the job." Ibid.

3. On remand, the parties filed cross motions for summary judgment.
Plaintiff contended that there have been significant advances in medical technology
that undercut the basis for the rulings in Daugherty and Chandler (R. 744-763).
Therefore, he argued, the per se rule should be abandoned, and the case should
proceed to trial to allow the jury to determine whether he was qualified to perform
the essential functions of the position for which he had applied (R. 763).

The City argued that it was entitled to summary judgment because those with
ITDM "continue to pose a direct threat to others as a matter of law in positions
(including that of San Antonio police cadet/police officer) that require the safe
performance of driving or other essential functions in higher risk job
circumstances" (R. 766). Even if the per se rule was abandoned, the City argued, it
was entitled to summary judgment because Kapche was not qualified for the
position without modification of its essential job functions, i.e., the capacity to
respond to emergencies on short notice. In such circumstances, the City argued, he
would not have time to take the steps necessary to avoid a hypoglycemic episode
(R. 787-803). In the alternative, the City argued that the district court should grant
it partial summary judgment as to plaintiff's claim for damages because, even if
there is a basis for rejecting the per se rule now, Chandler was controlling law in
the Circuit and therefore plaintiff was not qualified for the position when he
applied for and was denied employment in 1994 (R. 804-805).

On July 7, 2000, the district court issued an order dismissing the case,
without reviewing the per se rule established in Chandler and Daugherty (R.E.
Tabs C, D). The court found that the City had refused to hire Kapche when those
decisions were valid and the controlling law of the circuit. Thus, it concluded, the
City was acting in accordance with the prevailing law at the time of the adverse
employment decision, regardless of the present validity of the per se rule:

Unless the Fifth Circuit or the United States Supreme Court - the only
courts with the authority to overrule the Fifth Circuit's cases - find
Chandler and Daugherty to have been erroneous at the time they were
issued, those cases controlled (and justified) the City's decision. If, as
the Fifth Circuit acknowledges, technology is available today that was
not available in 1993 and 1995, the City cannot be held liable for
refusing to hire Kapche in 1994.

(R.E. Tab D at 4). This appeal followed.

SUMMARY OF ARGUMENT

In Chandler v. City of Dallas, 2 F.3d 1385 (5th Cir. 1993), cert. denied, 511
U.S. 1011 (1994), this Court adopted a rule that, as a matter of law, individuals
with insulin-treated diabetes mellitus present a significant safety risk while driving,
and can be excluded from jobs for which driving is an essential function, without
violation of the Americans with Disabilities Act or the Rehabilitation Act. This
Court should now abandon that rule.

A judicially adopted per se rule is, in most contexts, inconsistent with the
structure and purpose of the ADA, which was enacted to ensure that individuals with
disabilities are considered for employment on the basis of their abilities, and not
upon unfounded assumptions about their limitations. Determining whether an
individual with a disability is qualified for a particular job and whether he or she
poses a direct threat to others in the work place are individualized, factual inquiries
that must be based upon up-to-date medical and other information. Where an
employer uses a qualification standard that screens out individuals with a particular
disability, it must prove that the standard is justified by business necessity and that
a more individualized treatment of applicants is not feasible. A rule of law such as
that adopted in Chandler precludes the kind of factual inquiry required by the
statute, and lacks the flexibility to account for new medical and technological
developments.

Significant changes have occurred since the decision in Chandler which
make a judicially adopted per se rule particularly inappropriate here. As the record
in this case demonstrates, medical and technological advances have improved the
ability of individuals with insulin-treated diabetes to monitor and regulate their
blood glucose levels, thus substantially reducing the risk of hypoglycemia. The
federal policies upon which Chandler relied also have changed. Federal law
enforcement agencies now consider applicants with insulin-treated diabetes on a
case-by-case basis. And the Department of Transportation has reported to
Congress that it would be feasible to qualify individuals with insulin-treated
diabetes for commercial driver's licenses.

In this case, there is a material dispute of facts as to whether the plaintiff is
qualified for the position he seeks. For that reason, this Court should remand to the
district court to resolve that factual dispute. (2)

ARGUMENT

THIS COURT SHOULD ABANDON ITS RULE THAT, AS A
MATTER OF LAW, INDIVIDUALS WITH INSULIN-TREATED
DIABETES MELLITUS MAY BE EXCLUDED FROM JOBS FOR
WHICH DRIVING IS AN ESSENTIAL FUNCTION

A. The Per Se Rule Is Inconsistent With The ADA, Which
Requires Courts To Make Factual Inquiries In Determining
Whether An Applicant Is A Qualified Individual With A
Disability, Whether An Applicant Poses A Direct Threat, And
Whether An Employer's Qualification Standards Are Justified
By Business Necessity

1. Title I of the ADA prohibits employers from discriminating against
qualified individuals with a disabilities. 42 U.S.C. 12112(a). The statute defines
discrimination to include "using qualification standards, employment tests or other
selection criteria that screen out or tend to screen out an individual with a disability
or a class of individuals with disabilities unless the standard, test or other selection
criteria, as used by the covered entity, is shown to be job-related for the position in
question and is consistent with business necessity[.]" Id. at 12112(b)(6). A
"qualified individual with a disability" is "an individual with a disability who, with
or without reasonable accommodation, can perform the essential functions of the
employment position that such individual holds or desires." Id. at 12111(8).

The statute provides certain defenses to the employer, including the
following:

(a) In general

It may be a defense to a charge of discrimination under this
chapter that an alleged application of qualification standards, tests, or
selection criteria that screen out or tend to screen out or otherwise
deny a job or benefit to an individual with a disability has been shown
to be job-related and consistent with business necessity, and such
performance cannot be accomplished by reasonable accommodation,
as required under this subchapter.

(b) Qualification standards

The term "qualification standards" may include a requirement
that an individual shall not pose a direct threat to the health or safety
of other individuals in the workplace.

Id. at 12113. "The term 'direct threat' means a significant risk to the health or
safety of others that cannot be eliminated by reasonable accommodation." Id. at
12111(3).

An overriding purpose of the ADA, like that of the Rehabilitation Act, 29
U.S.C. 791 et seq., is to guarantee that an individual's qualification for a position is
based upon his or her ability to perform the essential functions of the job, and not
upon "prejudice, stereotypes, or unfounded fear." Sch. Bd. of Nassau County v.
Arline, 480 U.S. 273, 287 (1987); see id. at 284-285; H.R. Rep. No. 485, Pt. 2,
101st Cong., 2d Sess. 33, 56-57 (1990) (House Report); S. Rep. No. 116, 101st
Cong., 1st Sess. 7, 27 (1989) (Senate Report). Thus, whether a person with a
disability is "qualified" requires an "individualized inquiry" based upon
"appropriate findings of fact." Arline, 480 U.S. at 287; cf., Sutton v. United Air
Lines, Inc., 527 U.S. 471, 483 (1999) ("whether a person has a disability under the
ADA is an individualized inquiry").

Similarly, determining whether an individual poses a direct threat to the
safety of others "must be based on medical or other objective evidence." Bragdon
v. Abbott, 524 U.S. 624, 649 (1998). "Whether one is a direct threat is a
complicated, fact intensive determination, not a question of law. To determine
whether a particular individual performing a particular act poses a direct risk to
others is a matter for the trier of fact to determine after weighing all of the evidence
about the nature of the risk and the potential harm." Rizzo v. Children's World
Learning Ctrs., Inc., 84 F.3d 758, 764 (5th Cir. 1996); see Rizzo v. Children's
World Learning Ctrs., Inc., 213 F.3d 209, 211 (5th Cir. 2000) (en banc), cert.
denied, 69 U.S.L.W. 3166 (U.S. Oct. 30, 2000) (No. 00-305); EEOC v. Exxon
Corp., 203 F.3d 871, 875 (5th Cir. 2000) ("[d]irect threat focuses on the individual
employee, examining the specific risk posed by the employee's disability") (citing
29 C.F.R. 1630.2(r)) (3); see House Report, supra, at 57 (direct threat determination
"requires a fact-specific individualized inquiry resulting in a 'well-informed
judgment grounded in a careful and open-minded weighing of the risks and
alternatives'") (quoting Hall v. U.S. Postal Serv., 857 F.2d 1073, 1079 (6th Cir.
1988), additional citations omitted); Senate Report, supra, at 27 ("determination
that an individual with a disability will pose a direct safety threat to others must be
made on a case-by-case basis and not be based on generalizations, misperceptions,
ignorance, irrational fears, patronizing attitudes, or pernicious mythologies"). (4)

In like manner, an employer wishing to justify a qualification standard that
screens out individuals with disabilities must demonstrate that it is "job-related and
consistent with business necessity, and such performance cannot be accomplished
by reasonable accommodation." 42 U.S.C. 12113(a). Like the qualified individual
and direct threat inquiries, the business necessity defense is a question of fact. Cf.
Bernard v. Gulf Oil Corp., 890 F.2d 735, 741-744 (5th Cir. 1989) (applying clearly
erroneous standard to finding of business necessity in action under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq.), cert. denied, 497 U.S. 1003
(1990). It requires the employer to prove that "the risks are real and not the
product of stereotypical assumptions." Exxon, 203 F.3d at 875. As the Senate
Report explained, "this legislation prohibits use of a blanket rule excluding people
with certain disabilities except in the very limited situation where in all cases
physical condition by its very nature would prevent the person with a disability
from performing the essential functions of the job, even with reasonable
accommodations." Senate Report, supra, at 27.

An employer seeking to justify the blanket exclusion of all persons with a
particular disability from a job or class of jobs, therefore, bears a heavy burden to
demonstrate an objective, factual basis for its decision to depart from the
individualized, case-by-case assessment of qualifications contemplated by the
ADA. An employer might establish a more narrowly-drawn standard to define
which individuals with a particular condition are qualified for a position: for
example, a standard disqualifying all those with ITDM who have had recent
recurrent hypoglycemic incidents. In both cases the employer would need to
demonstrate that conducting an individualized assessment is not possible. Of
course, the more tailored the standard, the more likely it will be that the employer
can meet its burden.

2. A judicially-adopted per se rule is ill-suited to the analysis of safety
issues under the ADA. First, as explained above, the determinations whether an
individual with a disability is qualified, whether he or she poses a direct threat, and
whether a qualification standard is justified by business necessity all require fact-based inquiries. Once established, a rule of law pretermits these factual inquiries in
all subsequent cases to which the rule applies.

Second, new medical and technological developments will often change the
correlation between a particular physical or mental impairment and the abilities
necessary to perform a job. A rule of law permitting employers to impose a
blanket exclusion of all individuals with a particular disability from a job or class
of jobs does not allow consideration of such technological developments on a
timely basis even as they may be significantly changing individuals' abilities to
perform on the job. The Title I regulations provide that the direct threat inquiry
must be "based on a reasonable medical judgment that relies on the most current
medical knowledge and/or on the best available objective evidence." 29 C.F.R.
1630.2(r). But a judicially-adopted per se rule will be based upon the state of
medical knowledge and technology at the time the record was created in the first
case adopting the rule, which may be quite different than the circumstances at
relevant times in subsequent cases controlled by the per se rule. As the medical
and technological facts change, the results of all the fact-based inquiries required
by the ADA -- whether the plaintiff is qualified, whether he or she poses a direct
threat, and whether an employment standard is justified -- may change as well. A
rule of law deprives the courts of the flexibility to respond to such changes.
Instead, it freezes in place the results of a factual inquiry that may well be outdated.

Third, a per se rule such as that set forth in Chandler fails to account for
differences between jobs. Such differences may be relevant to an assessment of the
necessary qualifications, the relationship between those qualifications and the
condition at issue, and the risks involved in adopting a case-by-case consideration
of applicants. In short, not all jobs requiring driving are the same because they do
not necessarily require the same abilities or pose the same risks. (5)

B. New Developments Since The Decision In Chandler Warrant
Abandonment Of The Per Se Rule

Daugherty extended Chandler's rule to the ADA, reasoning that the "direct
threat" defense in the ADA recognized the same safety concerns encompassed by
the definition of a qualified individual under the Rehabilitation Act. See 56 F.3d at
698. Daugherty concluded that the plaintiff, who had been removed from his
position as a bus driver when he was diagnosed with ITDM, was not a qualified
individual with a disability because he did not qualify for a commercial driver's
license under Federal Highway Administration regulations. 56 F.3d at 697-698.
The plaintiff did not contest this conclusion, but argued that the City was obligated
to provide him a reasonable accommodation by applying for a waiver on his behalf
under the regulations. Daugherty, however, held that this contention was precluded
by Chandler. Id. at 697-698. While a waiver would avoid the legal constraints
posed by the Department of Transportation exclusion, the court stated, it would not
alter the plaintiff's medical condition, which, as a matter of law, rendered him "not
'otherwise qualified' to drive a bus under the Rehabilitation Act," and "not 'a
qualified individual with a disability' for the position of bus driver" under the
ADA. Id. at 698.

Circumstances have changed significantly since the decisions in Chandler
and Daugherty. As plaintiff has set forth in detail, the medical evidence in the
record in this case establishes that significant changes in medical technology have
made it easier for individuals with ITDM to monitor their blood glucose levels and
to maintain those levels within a safe range, thereby substantially reducing the risk
of hypoglycemia (Kapche Br. 5-6, 15-23; R.E. Tab F). In addition, as discussed
below, the federal policies upon which Chandler relied have now changed. After
exhaustively examining the question in a Congressionally-mandated study, the
Department of Transportation has determined that individualized consideration of
applicants with ITDM for commercial driver's licenses is feasible. In addition,
neither the FBI nor any of the other law enforcement agencies within the
Department of Justice currently employs a blanket exclusion of applicants with
ITDM for law enforcement positions. Against this background, there is no
justification for a judicial rule of law that disqualifies an entire class of applicants
from such a broad range of jobs.

2. At the time of the decision in Chandler, Federal Highway Administration
(FHWA) regulations provided that:

A person is physically qualified to drive a motor vehicle if that
person -

* * *

(3) Has no established medical history or clinical diagnosis of
diabetes mellitus currently requiring insulin for control[.]

Chandler noted that this restriction had been in effect since 1970, and that
FHWA had had occasion to revisit the exclusion numerous times, and had
determined to retain it in the interest of safety. 2 F.3d at 1394-1395 & nn.46-49.
Since the decision in Chandler, however, there have been several regulatory
changes, including the institution of a waiver program which has allowed qualified
individuals with ITDM to obtain commercial driver's licenses. Most recently, in
July 2000, the Department of Transportation reported to Congress that it would be
feasible to institute a program to qualify individual applicants with ITDM for
commercial driver's licenses (Report to Congress on the Feasibility of a Program to
Qualify Individuals with Insulin Treated Diabetes Mellitus to Operate Commercial
Motor Vehicles in Interstate Commerce, July 2000 (DOT Report)). (8)

In 1993 (the same year that Chandler was decided), after several years of
study, FHWA instituted a waiver program for qualified drivers with ITDM (DOT
Report at 7). To qualify for a waiver, applicants were required to have at least
three years experience driving a commercial motor vehicle while using insulin, a
safe driving record, and a favorable medical examination (DOT Report at 7, 9-10).
The waiver program, which was created as part of a research program to assess the
safety of drivers with ITDM, was subsequently suspended following Advocates for
Highway & Auto Safety v. Federal Highway Administration, 28 F.3d 1288 (D.C.
Cir. 1994) (see DOT Report at 10-11) (9). The program was terminated in 1996, but
those drivers who had been granted waivers were permitted to continue driving
(DOT Report at 13-14). Their driving records became the basis for a study of the
risks posed by drivers with ITDM (DOT Report at v, 44-45).

Section 4018 of the Transportation Equity Act for the 21st Century, Pub. L.
No. 105-178, 112 Stat. 107, 413 (1998), directed the Secretary of Transportation to
consider whether individuals with ITDM should be considered for commercial
motor vehicle permits on a case-by-case basis. (10) In July 2000, the Department of
Transportation submitted its report to Congress, concluding that "a safe and
practicable protocol to allow some ITDM individuals to operate CMVs is feasible,"
and stating that the Federal Motor Carrier Safety Administration (FMCSA), was
"evaluating alternatives for implementing a process for allowing individuals with
ITDM to drive in interstate commerce" (DOT Report at i). The report summarized
its conclusion:

The report concludes that a safe and practicable protocol
to allow some ITDM individuals to operate CMV's is feasible.
The research on the treatment and management of ITDM,
combined with the determinations of the medical panel, indicate
that the disease and its adverse effects can be successfully
controlled and monitored. Moreover, recent risk assessments
provide evidence that diabetic CMV operators can perform in
an acceptably safe manner. Finally, the program operated by
the FAA and the reanalysis of the FHWA's diabetes waiver
program demonstrate that it is possible to screen and monitor
ITDM individuals so that safe performance is feasible.

(DOT Report at vi).

In reaching this conclusion, the Department of Transportation reviewed the
medical literature regarding treatment and management of patients with ITDM as
well as risk assessment studies regarding diabetes and the operation of motor
vehicles, examined the policies of other Department of Transportation components
and of the States, and assembled a panel of physicians expert in the treatment of
diabetes (DOT Report at i-vi). It found that, while the risk assessment evidence
was not uniform, the more recent studies, including those examining drivers in the
waiver program, demonstrate that individuals with ITDM are presently operating
commercial motor vehicles safely, and that "it is possible to screen individuals with
ITDM and have them safely operate CMVs" (DOT Report at 61). The medical
evidence, it found, also supports individualized consideration of applicants with
ITDM (DOT Report at 61-63). Individuals with prior severe hypoglycemia and/or
with histories of hypoglycemia unawareness -- significant risk factors for future
incidents of hypoglycemia -- can be identified and screened out (DOT Report at
62). In addition, medical and technological advances, including blood glucose
monitors, new forms of insulin, better understanding of treatment regimens, and
better education for self-management of ITDM, combine "to greatly mitigate the
risk of hypoglycemia" (DOT Report at 63). "This research-based knowledge will
also make it possible to effectively monitor individuals who are operating in
interstate commerce" (DOT Report at 63).

Based upon the medical evidence and review of the protocols adopted for
earlier waiver programs, (11) the report recommended a three-part protocol:
screening of applicants to identify those qualified to drive commercial motor
vehicles, guidelines for glucose management for qualified drivers, and monitoring
of driving behavior and glucose management (DOT Report at 65). Detailed
recommended requirements were included for each of these protocols (DOT Report
at 65-69).

3. Chandler also relied upon Davis v. Meese, which upheld an FBI policy
excluding all applicants with ITDM from consideration for the positions of special
agent and investigative specialist. See 2 F.3d at 1395 & n.51. The district court in
Davis found (based upon a 1988 record) that "[e]very insulin-dependent diabetic is
constantly at risk of a hypoglycemic occurrence even under fully controlled
conditions," and that the risk of such occurrences would increase with an irregular
schedule involving delayed meals and unexpected physical exertion. 692 F. Supp.
at 513. Moreover, the court found, there was "no way to predict accurately the
probability or frequency of an insulin-dependent diabetic having a severe
hypoglycemic episode." Ibid. Because of the job requirements for the special
agent position and the public safety concerns implicated by the position, the court
found that the blanket exclusion of those with ITDM did not violate the
Rehabilitation Act. Id. at 516-521. It noted, however, that "[a]t some future time,
medical science may be able to predict accurately on a case-by-case basis those
insulin-dependent diabetics who present only a very slight or de minimus risk of
having a severe hypoglycemic occurrence while on an assignment as a special
agent or investigative specialist." Id. at 520. (12)

The FBI no longer has such a blanket policy of excluding all applicants with
ITDM from the special agent position. (13) Instead, it considers such applicants
individually, based upon their medical history, treatment, and prognosis. The other
law enforcement agencies within the Department of Justice (the U.S. Marshal's
Service, the Bureau of Prisons, the Drug Enforcement Administration, and the
Immigration and Naturalization Service) also evaluate applicants with ITDM on a
case-by-case basis.

C. This Court Should Vacate The Judgment For The City And
Remand To The District Court To Resolve The Factual Dispute
Regarding Plaintiff's Qualification For The Position

For the reasons stated above, this Court should now abandon the per se rule
adopted in Chandler and Daugherty that individuals with ITDM may, as a matter
of law, be disqualified from positions for which driving is an essential function.
Whether an individual plaintiff with ITDM is qualified for a particular job and/or
whether that individual poses a direct threat in the workplace are questions of fact
that should be determined on a case-by-case basis based upon the specific
circumstances, including medical evidence, applicable to that plaintiff's claims.
Where an employer has a qualification standard that disqualifies all or a subgroup
of all individuals with ITDM from a job or class of jobs, the employer must prove,
through objective evidence, that the standard is justified by business necessity. 42
U.S.C. 12113(a). Because such a blanket ban does not permit individualized
consideration of each applicant, the employer must show that the standard is
necessary and that no less generalized approach is feasible.

In this case, the summary judgment evidence indicates that there is a genuine
dispute of material fact as to whether the plaintiff is qualified for the position he
seeks. For that reason, this Court should remand to the district court to resolve that
factual dispute.

CONCLUSION

This Court should abandon its rule that, as a matter of law, individuals with
insulin-treated diabetes mellitus may be disqualified from positions for which
driving is an essential element.

I certify that paper and electronic copies of the foregoing brief for the United
States as amicus curiae were sent by first class mail this 7th day of November,
2000, to the following counsel of record:

1. Citations to "R.__" refer to pages in the record on appeal. Citations to "R.E.
Tab __ at __" refer to documents in the Appellant's Record Excerpts by tab and page
number. Citations to "Kapche Br. __" refer to pages in the plaintiff-appellant's
opening brief in this appeal.

2. This brief does not address the two other questions presented by the plaintiff:
whether the summary judgment evidence establishes that the City regarded the
plaintiff as disabled; and whether the district court erred in refusing to follow this
Court's mandate on remand. We note, however, that the City does not claim to have
abandoned the challenged practice. Thus, assuming that the complaint should be read
to assert claims for prospective injunctive relief as well as retrospective relief (see R.
816), plaintiff has standing to pursue this action and this Court has jurisdiction to
decide the questions presented on the merits. Cf., Texas v. Lesage, 120 S. Ct. 467,
468-469 (2000) (per curiam) (plaintiff may seek prospective relief if he alleges that
defendant has ongoing discriminatory policy).

3. With respect to "direct threat," the EEOC's Title I regulations provide that:

The determination that an individual poses a "direct threat" shall be
based on an individualized assessment of the individual's present ability
to safely perform the essential functions of the job. This assessment shall
be based on a reasonable medical judgment that relies on the most
current medical knowledge and/or on the best available objective
evidence. In determining whether an individual would pose a direct
threat, the factors to be considered include:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

29 C.F.R. 1630.2(r).

4. The EEOC's interpretive guidance for its regulation implementing Title I of
the ADA provides that the direct threat test must be used in every case where a safety-based requirement is at issue. 29 C.F.R. Pt. 1630, App. § 1630.15(b) and (c). This
Court disagreed in holding that the business necessity test, rather than the direct threat
test, applies in cases involving safety-based qualification standards that apply to all
employees of a given class. See EEOC v. Exxon, 203 F.3d at 873.

5. This brief does not address the standards applicable to regulations adopted by
a federal agency in a rulemaking proceeding and intended to ensure public safety.

6. Section 504 provides: "No otherwise qualified individual with a disability *
* * shall, solely by reason of his or her disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance[.]" 29 U.S.C. 794(a).

7. In 1995, FHWA amended this regulation to refer only to a "commercial
motor vehicle." See 60 Fed. Reg. 38,744-38,745 (1995). This change, however, was
not intended to be a substantive one. Rather, it was one of a number of changes
denominated "technical corrections to keep the Federal Motor Carrier Safety
Regulations accurate and up to date." Id. at 38,739. The notice explained that "the
term 'motor vehicle' is often used in these parts where 'commercial motor vehicle'
would be more precise. The term 'motor vehicle' has been replaced with 'commercial
motor vehicle' wherever appropriate." Id. at 38,740.

8. This report is included in the separately-bound addendum to this brief.

9. Advocates invalidated a similar waiver program for individuals with impaired
eyesight.

10. The Secretary was directed to "determine whether a practicable and
cost-effective screening, operating, and monitoring protocol could likely be developed
for insulin treated diabetes mellitus individuals who want to operate commercial motor
vehicles in interstate commerce that would ensure a level of safety equal to or greater
than that achieved with the current prohibition on individuals with insulin treated
diabetes mellitus driving such vehicles." Pub. L. No. 105-178, § 4018(a), 112 Stat.
413 (1998).

11. In addition to the waiver program for commercial motor vehicles instituted
in 1993, the report examined protocols for waiver programs adopted by the Federal
Aviation Administration for third-class (private) pilots and air traffic controllers (DOT
Report at iv, 29-32).

12. Serrapica, the other decision cited by Chandler, did not involve a blanket ban
of persons with ITDM. Rather it held that the City of New York had not violated the
Rehabilitation Act when it disqualified the plaintiff from a job as sanitation worker
because he had uncontrolled diabetes. See 708 F. Supp. at 65-68. Indeed, the decision
noted that the City had modified its employment criteria to permit the employment of
those with diabetes who are "in good control of their disease through medication and
diet." Id. at 69.

13. The investigative specialist position no longer exists at the FBI.